BYRNE J.The
appellant was convicted . . . upon an indictment framed under section 28 of the Offences
against the Person Act which. . . charged
that he unlawfully and maliciously caused to be taken by Sarah Wade a certain
noxious thing, namely, coal gas, so as thereby to endanger the life of the said
Sarah Wade.

The facts were that the appellant was engaged to be married and his prospective
mother-in-law was the tenant of a house, No. 7A, Bakes Street, Bradford, which was unoccupied, but which was to be occupied
by the appellant after his marriage. Mrs. Wade and her husband, an elderly
couple, lived in the house next door. At one time the two houses had been one,
but when the building was converted into two houses a wall had been erected to
divide the cellars of the two houses, and that wall was composed of rubble
loosely cemented.

On the evening of January 17, 1957, the appellant went to the cellar of No. 7A,
Bakes Street, wrenched the gas meter from the gas pipes and stole it, together
with its contents, and in a second indictment he was charged with the larceny
of the gas meter and its contents. To that indictment he pleaded guilty and was
sentenced to six months' imprisonment. In respect of that matter he does not
appeal.

The facts were not really in dispute, and in a statement to a police officer
the appellant said: 'All right, I will tell you. I was short of money, I had
been off work for three days, I got eight shillings
from the gas meter. I tore it off the wall and threw it away.' Although there
was a stop tap within two feet of the meter the appellant did not turn off the
gas, with the result that a very considerable volume of gas escaped, some of
which seeped through the wall of the cellar and partially asphyxiated Mrs.
Wade, who was asleep in her bedroom next door, with the result that her life was
endangered.

At the close of the case for the prosecution, Mr. Brodie,
who appeared for the appellant at the trial and who has appeared for him again
in this court, submitted that there was no case to go to the jury, but the
judge, quite rightly in our opinion, rejected this submission. The appellant
did not give evidence.

The act of the appellant was clearly unlawful and therefore the real question
for the jury was whether it was also malicious within the meaning of section 23
of the Offences against the Person Act, 1861.

Before this court Mr. Brodie has taken three points,
all dependent upon the construction of that section. Section 23 provides:
"Whosoever shall unlawfully and maliciously administer to or cause to be
administered to or taken by any other person any poison or other destructive or
noxious thing, so as thereby to endanger the life of such person, or so as
thereby to inflict upon such person any grievous bodily harm, shall be guilty
of felony. . . ."

Mr. Brodie argued, first, that mensrea of some kind is necessary. Secondly,
that the nature of the mensrea required
is that the appellant must intend to do the particular kind of harm that was
done, or, alternatively, that he must foresee that that harm may occur yet
nevertheless continue recklessly to do the act. Thirdly, that the judge
misdirected the jury as to the meaning of the word 'maliciously.

We have considered . . . the following principles. . .
.:

In any statutory definition of a
crime, malice must be taken not in the old vague sense of wickedness in general
but as requiring either (1) An actual intention to do the particular kind of
harm that in fact was done; or (2) recklessness as to whether such harm should
occur or not (i.e., the accused has foreseen that the particular kind of harm
might be done and yet has gone on to take the risk of it). It is neither
limited to nor does it indeed require any ill will towards the person injured.

We think that this is an accurate statement of the law. .
. . In our opinion the word 'maliciously' in a statutory crime postulates
foresight of consequence.

In his summing-up Oliver J. directed the jury as follows:

You will observe that there is
nothing there about 'with intention that that person should take it.' He has
not got to intend that it should be taken; it is sufficient that by his
unlawful and malicious act he causes it to be taken. What you have to decide
here, then, is whether, when he loosed that frightful cloud of coal gas into
the house which he shared with this old lady, he caused her to take it by his
unlawful and malicious action. 'Unlawful' does not need any definition. It is
something forbidden by law. What about 'malicious'? 'Malicious' for this
purpose means wicked - something which he has no business to do and perfectly well
knows it. 'Wicked' is as good a definition as any other which you would get.

The facts . . . are these . . .
[T]he prisoner quite deliberately intended to steal the money that was in the
meter….broke the gas meter away from the supply pipes and thus released the
main supply of gas at large into that house. When he did that he knew that this
old lady and her husband were living next door to him. The gas meter was in a
cellar. The wall which divided his cellar from the cellar next door was a kind
of honeycomb wall through which gas could very well, so that when he loosed
that cloud of gas into that place he must have known perfectly well that gas
would percolate all over the house. If it were part of this offence – which it
is not – that he intended to poison the old lady, I should have left it to you
to decided, and I should have told you that there was evidence on which you
could find that he intended that, since he did an action which he must have
known would result in that. As I have already told you, it is not necessary to
prove that he intended to do it; it is quite enough that what he did was done
unlawfully and maliciously.

With the utmost respect to the learned judge, we think it
is incorrect to say that the word 'malicious' in a
statutory offence merely means wicked. We think the judge was, in effect,
telling the jury that if they were satisfied that the appellant acted wickedly
- and he had clearly acted wickedly in stealing the gas meter and its contents
- they ought to find that he had acted maliciously in causing the gas to be
taken by Mrs. Wade so as thereby to endanger her life.

In our view it should have been left to the jury to decide whether, even if the
appellant did not intend the injury to Mrs. Wade, he foresaw that the removal
of the gas meter might cause injury to someone but nevertheless removed it. We
are unable to say that a reasonable jury, properly directed as to the meaning
of the word 'maliciously' in the context of section 23, would without doubt
have convicted.

In these circumstances this court has no alternative but to allow the appeal
and quash the conviction.